Utah Med Law

 This proposed legislation is wrong and wreaks of the special interest influence that is rampant here in Utah.  Here the doctors, their medical malpractice insurers and health care facilities, all very strong professional interests, are lobbying the government to further restrict the rights of the individual harmed as a result of medical malpractice perpetuated upon them by negligent physicians and hospitals.Senate bill 145 is wrong in so many ways:

1) Protecting Health Care Providers:Utah already has 27 statutes protecting health care providers from malpractice claims. Of the 96,000 civil lawsuits filed in 2008, only 229 were malpractice suits. The perception that medical malpractice is driving up health care costs is simply not true.

2) Fiscal Note:The bill currently does not have a fiscal note, but the effect of the bill will be to reduce the amounts that Medicaid will be reimbursed from medical malpractice claims. The loss in state funds will be significant. This is hardly the economic climate for enacting legislation that will take money out of state coffers and put it in the hands of insurance companies.

3) Statute of Repose:The bill requires the parent or guardian of a minor under age 10 to file a medical malpractice claim on the minor's behalf before the minor's 14th birthday (unless the parent has a conflict of interest). The statute already has a 4-year statute of repose, which has been held unconstitutional as applied to minors. (Lee v. Gaufin, 867 P.2d 572 (Utah 1993).) The provision in the current bill will also likely be found unconstitutional. The policy of the state should protect minors, not deprive them of claims before they can decide for themselves.

4) On the Cap:In 1986, Utah enacted its first caps on noneconomic damages--primarily pain and suffering and other damages that are difficult to quantify -- available in malpractice lawsuits, setting the limit at $250,000. Ten years ago, the limit for noneconomic claims was raised to $400,000 due to inflation and today it stands at $480,000. SB 145 would return the limit non-economic damages to $250,000 for cases filed after May 1and there would be no indexing for inflation. In cases where someone has had the wrong leg amputated or a child has suffered brain damage, $250,000 is inadequate to cover the individuals' pain and suffering. According to the Congressional Budget Office, a $250,000 cap on noneconomic damages would only reduce overall health-care costs by 0.5%. Indeed, after the 1986 damage cap went into effect, health-care costs and malpractice insurance premiums continued to go up. If the Legislature is serious about bringing health-care costs under control, it should focus on insurance reform, not tort reform.

5) On Sliding Scale:SB 145 also proposes a sliding scale for attorney fees, from one-third of the award for the first $100,000 down to 15% for awards over $600,000.contingent fees are a just a way for someone to get legal representation. The Legislature shouldn't intrude with a contract between an attorney and a client. There is already a limit on contingent attorney's fees in medical malpractice actions. A contingent fee is the only way most injured people can afford to pursue a claim. Medical malpractice claims are already the hardest and costliest to pursue; the cost of taking a case to trial can be well over 100,000. Once again, the only people whose pockets will benefit from the bill are the insurance companies.

6) Affidavit of Merit:The bill would require an injured person to obtain a statement from a health -care provider in the same specialty against each defendant before he can bring a claim. Before a person can obtain an affidavit of merit, he must obtain all his medical records, find someone willing to testify against a fellow doctor, and have the medical records reviewed and a statement drafted. Which leads to the next problem with the bill: If the allegations in an affidavit of merit “are found to be without reasonable cause," the plaintiff or his or her attorney is held liable for the payment of expenses and attorney fees actually incurred. The effect is once again to intimidate injured people from bringing claims.

7) One Sided Bill:Finally, the bill is one-sided. The defense does not have to provide any expert opinions at the pre-trial stage, has no attorney fee caps, or sliding-scale attorney fees. Those that will be hurt by this bill are injured patients and their access to justice.

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written by CarlyRasmussen34 , July 31, 2010

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